Price v. Greer

• Decision Date: 29 July 1905
• Citation: 88 S.W. 985,76 Ark. 426
• Parties: PRICE v. GREER
• Court: Arkansas Supreme Court

88 S.W. 985

76 Ark. 426

PRICE v. GREER

Supreme Court of Arkansas

July 29, 1905

Appeal from White Circuit Court, HANCE N. HUTTON, Judge.

Reversed.

STATEMENT bye THE COURT.

This is an action brought by appellee, B. W. Greer, against appellant, C. A. Price, for trespass upon several tracts of lands claimed by appellee, aggregating 495.97 acres, by cutting timber therefrom. The complaint alleges that the plaintiff is the owner of the lands in question, and that he "has been in the possession of the same and paying the taxes assessed against said lands continuously for the past twelve years." Damages are laid in the sum of $ 3,000.

The defendant answered, admitting that he cut the timber on the land, and that plaintiff was the owner of the land at the time of the suit, but denying that plaintiff was the owner of the land at the time the timber was cut, and denying "that the plaintiff is in possession of said land, and has been in such possession for the last twelve years."

The jury returned a verdict in favor of the plaintiff, and assessed the damages at $ 1,250, and the defendant appealed.

Judgment reversed and cause remanded.

J. G Holland and J. W. & M. House, for appellant.

A quitclaim raises no color of title, unless it appears that the grantor has some title to or the possession of the land. 3 Washb. R. Prop. 155; 14 N.H. 111; 50 Ark. 322. In this case appellee's chain of title begins with a tax deed void on its face, because:

A county clerk is not allowed to purchase lands at a delinquent tax sale. 34 Ark. 582.

A tax sale showing sale of more than one tract is void. 29 Ark. 476; 30 Ark. 579; 31 Ark. 491.

A sale on August 2, 1869, was on a day later than the law authorized, and was therefore void.

A tax deed void on its face is no cloud on a title. 27 Ark. 675; 55 Ark. 549; 30 Ark. 579. To maintain trespass, the plaintiff would have to show actual possession or such a state of facts as would imply possession. 44 Ark. 74. There is no constructive or implied possession under a tax deed void on its face. 57 Ark. 523; 60 Ark. 163. As both parties to this action really claim under a common source of title, G. W Andrews, the appellee can not dispute the right of appellant in the timber, the deed of the latter being prior in time to the former. 38 Ark. 181; 41 Ark. 17.

When both parties claim title to land under the same grantor, both are estopped to deny his seisin. 44 Ark. 516.

When a tax deed is executed without power, no benefit can be derived under it. The deed from John A. Cole, clerk, to John A. Cole was a fraud upon its face, and put everybody upon notice. 32 Ark. 131; 35 Ark. 505; 13 Mich. 329; 16 Mich. 12; 23 Ind. 46; 21 Iowa 70; 42 Mo. 162; 29 Iowa 356.

S Brundidge, Jr., for appellee.

Appellee has color of title. 102 U.S. 540; 40 Ark. 237; 47 Ark. 531; 70 Ark. 487; 71 Ark. 390; 71 Ark. 386; 96 Ga. 860; 7 Wash. 617; 32 N.E. 309; 2 Blackw. Tax Titles (5th Ed.) sec. 861; 13 How. 477.

MCCULLOCH, J. BATTLE, J., absent.

OPINION

MCCULLOCH, J., (after stating the facts.)

In actions for trespass upon land it devolves upon the plaintiff, before he can maintain the action, to show either title or possession. Mere color of title is not sufficient. The plaintiff in the trial below introduced a chain of title deeds conveying the lands in question, running back to a deed from one John A. Cole in 1881. These deeds constituted color of title, but do not show a perfect chain of title. He also introduced a deed, dated February 7, 1872, from John A. Cole, as clerk of White County, to John A. Cole (whether the grantor and grantee are the same individual does not appear), conveying part of the lands (295.97 acres) pursuant to sale for taxes. The validity of the tax sale and appellee's title thereunder is attacked by appellant, but we need not determine the question of its validity, inasmuch as the proof does not show the amount of timber cut from each tract; and as the verdict of the jury fixes the gross value of the timber cut from all the land, the case must be reversed unless the plaintiff has shown his right to recover for the timber cut from the other tracts. The burden was upon appellee to prove his title or possession.

It is not claimed that he had actual possession, the lands being wild and unoccupied, but he sought to establish title to and possession of all the lands by showing compliance with the act of March 18, 1899, in paying taxes.

This court, construing that statute in the case of Towson v. Denson, 74 Ark. 302, 86 S.W. 661, held that the payment of taxes on wild and unimproved land under color of title constitutes possession for each successive year in which payment is made, provided, however, that such payments be continued for at least seven years in succession, and not less than three after the passage of the statute.

The only testimony on the point was that of J. H. Greer, a brother and agent of the plaintiff, who said that he had "paid taxes on all these lands since 1891." He did not say what years he paid, nor give the dates of payments. This was sufficient to warrant the jury in finding that he paid the taxes continuously since 1891, and made the payments within the times required by law for paying taxes; but it does not authorize a finding that three payments were made before the date of the trespass and after March 18, 1899, so as to bring the case within the terms of the statute. The trespass commenced in ...